Wednesday, March 07, 2018

Is CS Achesa up to the task?

If I could afford the cost of setting up one and could generate enough income to pay for the operating costs, the reason I'd establish a newspaper, a TV news station or a news radio station would not be to offer "good journalism" but to offer "good journalism at a profit". Very few people would spend millions, perhaps tens of millions, of shillings without expecting a return on their investment. To expect investors to lose money on their investments is naive.

The same is true about investing in the production and distribution of other forms of media, especially music, TV scripted or animated shows, or films, movies and documentaries. Content producers expect to be pad for their efforts. Distributors expect to make a profit on their investment. Broadcasters and exhibitors also expect to turn a profit. It is a simple but profound truth: there are no free lunches; someone always picks up the tab.

Which brings us to Wakanda. By now it must be obvious that filming in Kenya, whether you are a local film maker or a foreign one, is not easy. It has been so for at least a decade. Every now and then, a Hollywood producer will shoot part of their movie in Kenya but these are not the days of Mogambo (1953), White Mischief (1987) or The Constant Gardner (2005). Stories of Kenyans and about Kenya are being shot in South Africa (The Ghost and the Darkness, 1996, and The First Grader, 2010, come to mind) as are many television ads featuring major Kenyan companies. And so it is no surprise that Wakanda, a fictional nation in East Africa, was not shot in Kenya but, among other places, South Africa, Uganda and Zambia.
We could argue that the $200 billion that Ryan Coogler was given by Disney to make the film could have spared a few hundred thousand dollars to film in Kenya, but the likes of Ezekiel Mutua and the bureaucracy that sustains the Kenya Film Classification Board would have found ways to raise the cost of doing business in Kenya, as would have the Ministry of Sports, Culture and the Arts (under the hapless Hassan Wario) and the county governments that would have had the pleasure of hosting the Wakanda crew. The bureaucratic headaches would not be worth the dollars.

We still don't have a coherent position on what we should do with our cultural artifacts, both ancient and modern. Should we monetise them and if so, in what way? Are there cultural artifacts that are "owned" by specific communities and what are their rights to these artifacts? How do we encourage content producers to invest in the producing new cultural artifacts if we aren't sure that they will make any money out of them? If I want to film a Durex condom ad in Nairobi, in support of a national HIV and AIDS control policy, why should I pay fees to the Kenya Film Classification Board, the Film Department of the Ministry of Sports, Culture and the Arts, and the county government? Afterwards, if I want the ad broadcast in Kenya, why must I pay for separate permits from the KFCB and the Communications Authority? This on top of the taxes that I will pay under the Income Tax Act, the Excise Duty Act, and the East African Community Customs Management Act.

A policy is long overdue. I wonder if CS Achesa is up to the task of bringing Kenya out of the creative dark ages.

Tuesday, February 27, 2018

It's a stupid plan

If the Jubilation really wanted to "revisit" the issue of the Judiciary's independence, then the petition for the removal of members of the Judicial Service Commission is the wrong gambit. While the petition is likely to receive favourable hearing by the Jubilation-packed Justice and Legal Affairs Committee of the National Assembly, the outcome of the petition will not "fix" the Judiciary problem that confronts the Jubilation. In fact, it will stymie any immediate future plans that the Jubilation may have for the Judiciary because it will deny the JSC a quorum to hear any petitions for the removal of a judicial officer. The Chief Justice may, theoretically, be removed from the JSC but that is not the same as removing him from the office of the Chief Justice.

What is certain is that the Jubilation had attempted to steamroll the Chief Justice and the Deputy Chief Justice when the member for Nyeri Town petitioned the Commission to hear his diatribe against the two. He was laughed out of the courtroom. It is fit and proper that the Commission set a high bar for the quality of the proof that will be needed to hear a petition against judicial officers and recommend to the President the appointment of a tribunal to investigate the judicial officer. Now the Jubilation is throwing a "Hail Mary Pass" by going to the friendlier though, largely ineffective, National Assembly. It is a stupid plan.

What it isn't

The removal of a judge may be initiated only by the Judicial Service Commission acting on its own motion, or on the petition of any person to the Judicial Service Commission. -- Article 168 (2)
A person desiring the removal of a member of a commission or of a holder of an independent office on any ground specified in clause (1) may present a petition to the National Assembly setting out the alleged facts constituting that ground. -- Article 251 (2)
An advocate of the High Court of Kenya seeks the removal of members of the Judicial Service Commission in a petition he has made to the National Assembly under Article 251 of the Constitution. many lawyers have responded y accusing the advocate of being a shill for the Jubilation in its assault on the Judiciary. They argue that the National Assembly is the wrong forum for seeking the removal of judges from office. They conveniently ignore that the petitioner seeks the removal of not just the judges sitting in the Judicial Service Commission, but also magistrates and the representatives of the Law Society of Kenya.

The petitioner does not seek the removal of judges [of the superior courts] from judicial office; if he did, then the National Assembly would be the wrong forum. He would have had to petition the Judicial Service Commission itself under Article 168. But if that was his intention, then his desire to remove the representatives of the Law Society would not be determined under Article 168, hence his decision to approach the National Assembly.

The petitioner, though, has not considered the full implications of his petition. If he succeeds, the outcome will be that the judges and magistrate will only have lost their seats on the commission but will continue to hold office as judges or magistrates. Thereafter, the commission will have lost its quorum and, therefore, will be unable to sit to hear any petition to remove a judge of a superior court, including the removal of the Chief Justice, the Deputy Chief Justice, or the removal of a magistrate, from office. These judicial officers will continue to hold office regardless of their fitness to hold office.

It remains unknown what the petitioner intended with his petition to the National Assembly or whether he is even familiar with the potential constitutional problems a successful petition will engender. This is a hallmark of many Jubilation "experts". Isn't it time the Jubilation took time off to go back to school?

Thursday, February 22, 2018

Men must be made uncomfortable

I knew for a fact that this man did not respect me. I had been publicly preyed upon and now was expected to constantly be in the presence of my predator. Be civil. Pose for pictures with him. Act as though there was nothing amiss even as the photographer insisted that we at least try a little not to look like total strangers. Venture to perhaps even smile for the pictures. - Dear Men I Hope This Post Makes You Uncomfortable: Thoughts On Sexual Harassment
There is no way that a man can appreciate what it must feel like for women to manuevre in a world that is dominated, shaped, influenced and ruled by men. Not even when a man has a grandmother, mother, sister, daughter, girlfriend, wife or mistress. And for the majority of us, men, we won't even attempt to walk in women's shoes. When the stories of our masculine lives are written by men, published by men, critiqued, criticised and appreciated by men, we have no incentive, personal, cultural, ethical, economical, political or professional, to appreciate why women continue to suffer - and hide their suffering lest it be used as a weapon to oppress them further.

Whichever words or expressions have been used to describe the thing of it - patriarchy, male privilege, phallocentrism, rape culture - one thing remains true: few men pay a price for reveling in their privilege at the expense of women. So it is fit and proper for women to discomfit as many men as they possibly can by telling and retelling their stories of how they navigate their lives in a man's world. It is why I am so grateful for Kathleen Siminyu and the rage she feels because of her experiences. More female voices like hers are needed to lay to waste the male privilege that disempowers the vast majority of women.

Men must acknowledge, culturally, professionally, politically and economically, that women are their equals, that neither is the superior of the other and that every person deserves to have their dignity respected and affirmed at all times. And for this to happen, men must cede their privilege in all respects. When a woman walks into a meeting room, it should not be automatically presumed that she will remain silent, expected to fetch tea, give the opening prayer or defer to the authority of a man or the men present at the meeting.

Men must also call out, challenge and confront other men when they take liberties with women that they are not entitled to. For example, simply because a woman is out alone at a disco doesn't mean that she is "fair game" or that she is need of masculine company; any man who approaches her must do so with the expectation that his advances may be rejected and that it is well within the woman's dignity to reject his advances. And if the woman accept his advances, she will do so on her terms alone.

It will not be easy for men to give up their privileged status. Indeed, I fear that the resistance to change will be fierce. It is why as many many men as possible must be confronted and punished when they violate the dignity of women in any way. Don't get me wrong; I am not calling for a war of the sexes. But no man should walk proudly with his head held high after he violates the dignity of any woman. And by punishment, I don't just mean through the formal court process; but I also mean by the social, cultural, political and moral weapons available. It must be drilled into all persons that we are all equal and that our dignity is not superior to another person's.

Monday, February 12, 2018

Not our saviour

Boniface Mwangi is a talented and accomplished photojournalist. He is also a talented political activist -- his ability to shame men and women of political power is almost unparalleled. But Mr Mwangi is not a talented politician. I don't base my assessment only because he was soundly defeated by Charles Njagua Kanyi, better known as the musician Jaguar, when he stood in the last election for the Kamukunji seat in the National Assembly. I base it on the fatal mistake that guaranteed his defeat.

Mr Kanyi is nowhere near being a talented musician or politician; yet, both his jams and his political career have thrived (though, in electoral politics, six months is too short a time to measure success or failure). But he recognised an iron law of politics: unless you are a Nelson Mandela, a George Weah, a Kizza Besigye or a Raila Odinga, it is pointless to reinvent the wheel. Bar one or two anomalous ones, every single political party in sub-Saharan Africa has sang from the same song-book if not the same song-sheet: make Government more democratic; give the people more power; safeguard the people's rights; ensure the benefits of development are shared more widely; improve access to public services for the marginalised; uphold the rule of law; prudently manage public funds.

In registering the Ukweli Party, Mr Mwangi and his supporters trod a path that had been trodden before, in Kenya, by Kenneth Matiba, Mwai Kibaki, Raila Odinga, Paul Muite, Charity Ngilu, Martha Karua, Julia Ojiambo, Nazleen Umar, and Uhuru Kenyatta, among many others. In Kenya the most common political cliche is the registration of a new political party to correct the mistakes of all the political parties that came before. It is neither an original nor, in the vast majority of instances, a successful gambit as Mr Mwangi discovered (and as did also-rans like Ekuru Aukot and Mohamed Abduba Dida). If that were not bad enough, Mr Mwangi made the same promises every founder of a political party has made since 1963 with a dash of social-media-fed hubris thrown in for good measure. Mr Mwangi believed that his very public and very evocative campaign against "MPigs", his favourite sobriquet for parliamentarians, over their pay and other shenanigans was a firm foundation for a successful small-party career. He was wrong.

It is easy to start a political insurgency; it almost impossible to sustain one if you don't appreciate the situation on the ground. We have known this since 1992: new political parties are not the answer to Kenya's political crises or problems. They, sometimes, are the problem because they rarely espouse the democratic principles their founder-members spout in public. Almost all Kenyan political parties, if not all, are the personal political vehicles of heir "owners", owned and operated with the sole purpose of electing the owners to Government. As a result, while many are membership organisations when they are getting off the ground, they cease being so once an elite captures the party structures: governance bodies and fund-raising apparatus. And if a party is lucky enough to send a candidate to Parliament, he or she almost always betrays the party's rank and file, sinks his nose in the parliamentary trough and acquires airs and tastes that only a few months before he or she had railed against as being arrogance and theft. In Parliament, there are no saints.

Raila Odinga has done a lot of heavy lifting when it comes to changing the politics of Kenya and even he knew that Lone Ranger insurgencies almost always end in defeat. It is why he merged his party with Moi's Kanu in 2002 and another party with Mwai Kibaki's DP, with others, to form the National Rainbow Coalition. It is why he teamed up with Kalonzo Musyoka, Musalia Mudavadi and Uhuru Kenyatta in 2005 to form the Orange Democratic Movement that defeated the Wako draft constitution. And it is why he had no problem being part of the Coalition for Reforms and Democracy in 2013 or the National Super Alliance in 2017. Only once has his coalition building been a success; but just because he has not been elected president yet doesn't mean that he has failed. Indeed, Mr Odinga is the single most important political subject in Kenya today, obsessed over by supporters and rivals, friends and enemies alike. In the Government, Mr Odinga has stamped his imprimatur; Mr Mwangi, on the other hand, will probably merit only a footnote but not much more.

Mr Mwangi and the Ukweli Party, the hubris of the party name notwithstanding, don't have a monopoly on the truth or political good intentions. Therefore, they are not the only saviours of Kenya waiting in the wings. If he is incapable of joining or building a coalition with existing political parties, in which he must swallow his pride and work with some MPigs, Mr Mwangi will never set foot inside the august chamber of the National Assembly and if he does, one of two things will happen: his will be an acrimoniously short stay or he will bury his nose in the same trough just like the other MPigs. What will not happen is that he will not reform the National Assembly and he will not save Kenya.


The Washington Post, in its banner, declare that "democracy dies in darkness". How cute. The modern history of the world, with its nations, theocracies and monarchies, has been one in which the people invited the end of democracy and the birth of dictatorship, among other illiberal forms of government. It is why it is amusing to see the largely ineffectual freakout among Kenya's chattering classes over the events of the past month. Everyone and his cat (well, everyone that is not a card-carrying member of the Jubilation) is suddenly an expert on "media" freedom, citizenship, "dual" citizenship, "high" treason, due process, "court orders", habeas corpus, freedom of assembly and of movement, public international law, the Vienna Convention on Diplomatic Relations, et cetera, and all because Raila Odinga took an oath to serve as the "people's" president.

Constitutional rights and freedoms, no matter how much we repeat that they are not granted by the State, are meaningless if the constitutional norms that underpin their enjoyment and protection are ignored by the majority of the people. We may have a good constitution in our hands; whether we are good constitutionalists remains (to my mind) highly contested. I am constantly surprised at the extent many of us will go to repudiate constitutional principles if it will stymie our rivals' plans and promote ours.

For instance, Article 27 (1) declares grandiosely that every person is equal before the law and has the right to equal protection and equal benefit of the law. This constitutional right is meaningless if we do not apply the principle of the rule of law, wherein parties to a dispute are treated in the same way by the courts and where the orders, decrees and judgments of the courts are obeyed without question. In Kenya, Article 27 (1) is mocked every day that the courts treat the wealthy differently than they treat the poor; where the courts almost always defer to State agents and turn a deaf ear to private parties; where the State privileges the comfort and safety of State officers while leaving private citizens to fend for themselves; and where some parties enjoy the luxury, nay right, to ignore unfavourable court orders without facing any sanction from any quarter.

That we, "the people", have largely accepted this state of affairs, by using violations of the principle as cudgels to batter our rivals while ignoring our own violations, is proven by how the recent violations of the principle have elicited yowls of protest from Oppositionists, shrugged shoulders from Jubilationists and a cast-iron guarantee that State officials like the Cabinet Secretary for the Interior, the Inspector-General of Police, the Director of Immigration and the Attorney-General will not be answering difficult questions about court orders from judges or magistrates any time soon.

We, "the people", have done nothing to disabuse these people as to the folly of watering down the meaning and import of constitutional norms. Instead, we spend more time arguing about absolutely stupid ideas like "benevolent dictatorship". Democracies don't die in darkness. They die in the full light of day when people find excuse after excuse to not do the hard work of building, nourishing, sustaining, deepening and defending a democracy. In Kenya, we have heard all the excuses: we are too poor; we were not ready for Uhuru; it is the fault of the colonial government; tribalism is to blame; neoliberal policies have destroyed social safety nets; terrorism is an existential step and we must deal with it first; we are too corrupt. 

Dozens more excuses have been made save the one that truly matters: while we have written and amended constitutions and laws, build and destroyed public institutions, and elected and deposed governments, we have not inculcated constitutionalism in the fabric of public life. Instead, we have favoured cults of personality based on class wealth, tribal superiority complexes and the instant gratification that political and economic corruption engenders for an elite few. Worse still we have no interest in inculcating constitutionalism in the fabric of public live. It's too hard; it's too expensive; we are not ready; we are too corrupt. After fifty-five years, we have become adept at making excuses.

Tuesday, January 09, 2018

Long and vengeful memories

Interesting to see that no matter what progress we make, there will always be critics. City cleaning by = Why isn’t it being done by NCC staff (who have already shown you they cannot handle the task)?; Digital transformation of Nairobi = Way to steal collections; -- Polycarp Igathe, Deputy Governor of Nairobi City County
The Green City in the Sun, as Nairobi City was once known, is a pale shadow of its former self, not that its former self was something to write home about. City Fathers have always had plans on how to turn this city into a "world class" city. Those plans never seem to come to fruition. And in the Age of Devolution, those plans have left a bitter aftertaste. Le Kidero promised us a transport system to rival Berlin's; he delivered more chaos and dysfunction. His Sonkoness had a one-hundred-days plan that has been quietly shelved. And now his deputy, Mr Igathe, sees fit to argue that legitimate questions about public services by the county government are illegitimate.

Le Kidero's failures were the reason why Nairobi's voters chose Messrs Sonko and Igathe. Few believed their promises but many hoped that they would manage the city in a way that delivered results that benefit the city's residents. It is becoming increasingly certain that the duo knows little about running a county government and that they are becoming adept at PR like their neighbour in Machakos county. Their social media blitz is designed to shut down any legitimate criticism of their performance and to obscure the fact that both are out of their depth in running a large and complex entity like a county government.

We will judge them on the provision of basic services such as public sanitation, water and sewerage, and public transport. So far, they have demonstrated a complete and utter lack of appreciation of the dire state of affairs, carrying on with the failed policies of Le Kidero and his predecessors in City Hall. Even if the 2017 drought hadn't reduced the amount of water available in the dams that supply water to the city, the new county government has done precious little to ensure that services are improved. Water rationing is now part and parcel of their legacy, and the fact that water vendors, large and small, are thriving is an indictment of His Sonkoness's and Mr Igathe's inability to protect the interests of the residents of the city.

But Mr Igathe's petulance regarding the status of the Sonko Rescue Team, hashtag and all, raises suspicions that not even he understands why the "charitable organisation" is performing functions that should be performed by the county government. When His Sonkoness was a senator and gubernatorial candidate, the Sonko Rescue Team was an excellent political cudgel when wielded against Le Kidero and his incompetent government. His Sonkoness is now the governor of Nairobi City County and he must work within the law. The status of the Sonko Rescue Team in the provision of public services must be clarified.

The doubts surrounding the Sonko Rescue Team and what they are authorised to do go to the heart of transparency in the management of county affairs. We do not know if the young people in the Sonko Rescue Team are county employees or whether they contractors. We do not know if public funds have been appropriated to pay for their services. We do not know whether or not they are to be held accountable for damage caused to public or private property or whether the blame should fall on the county government. Mr Igathe's petulance is probably intended to hide the truth regarding the Sonko Rescue Team. We may never know the truth if this how the county government intends to respond to questions regarding service delivery or the expenditure of public funds. What His Sonkoness and his deputy forget is that the same scythe that shortened Le Kidero's political life will also be wielded against the duo if they carry on in this petulant vein. Five years is not an eternity and Nairobians have very long and vengeful memories.

Friday, December 01, 2017

Reform-proof attitudes

I may be wrong, but even in Kenya the police surely must undergo some form of training to know when and how to use deadly force. It is thereason why the Kenya Police Service has Kiganjo and the Administration Police Service has Manyani. Lord knows where the General Service Unit undergoes firearms training, but I am assuming the same basic instruction will cover the hows and wherefores of the use of deadly force.

What I cannot be sure of is whether the so-called police reforms recommended in the Ransley Report took into account the reason for the existence of the National Police Service: national security. The Constitution defines "national security" as,
"the protection against internal and external threats to Kenya’s territorial integrity and sovereignty, its people, their rights, freedoms, property, peace, stability and prosperity, and other national interests."
Despite the constitutional definition of "national security", which applies to the national security organs established in Article 239 (1) including the National Police Service, the principal reason for the existence of the police is the preservation of the power, authority, prestige and dignity of the national Executive as personified in the President. In the Service's mind, anything that threatens the power, authority, prestige or dignity of the President is a treasonous crime, and anyone who commits that crime is guilty of treason and anyone who offers the traitor any assistance whatsoever deserves the same fate.

The National Police Service very rarely sees its principal duty as the safety of the people or their property. Indeed, one of the signs that it considers the people as the enemy or potential enemies or fifth columnists hell-bent on aiding in the commission of treasonous acts by the enemies of the President is the hyper-militarisation of public spaces: the police occupy these spaces as it were an military occupying force in enemy territory. It is why policemen are always armed with assault rifles and situate armed personnel carriers at key choke-points in public spaces, especially urban areas.

Because of its character and guiding philosophy, it is almost certain that the policeman who shot dead Geoffrey Mutinda will ever be known or held to account for his or her actions. The late Master Mutinda was a casualty of a policy that treats any possible embarassment of the Commander-in-Chief as a national security crisis to which the only rational response is overwhelming and deadly force. Master Mutinda was killed because he lived in an area whose residents had allowed to be used by traitors who intended to embarass the President on the day he was to take his oath of office. This could not stand. And when less effective messages were ignored by the President's enemies (senior officials in the county government arranged for lorry-loads of garbage and sewerage to be dumped in the venue), there was no choice but to put down the treasonous insurrection with deadly force if needed. The President's enemies would not back down. The use of live ammunition was inevitable. Master Mutinda's tragic death was all but certain.

How the police reacted afterwards is instructive. A senior member of the National Police Service declared that the police is "the authority that enforces the law", implying that it is the police to decide what the law means, including when it is fit and proper to enter any area under force of arms and deploy deadly force to deal with a threat to peace and [national] security. Since the general election of the 26th August and the second inaugural of the President on the 28th December, the number of Kenyans who have been killed by the police as it attempted to crash all attempts at embarassing the President have only exposed the National Police Service as a handmaiden to a philosophy that has defied all reform. We have issued them with new insignia, uniforms and titles but policemen retain the same attitudes they did before the promulgation of the Constitution in August 2010 and no constitutional definition of the Service's mandates will change the situation unless the reason for its existence changes.

Thursday, November 30, 2017


How do you get to Carnegie Hall? Practice, practice, practice.
It's an old joke but in it is a lesson that we all eventually come to learn, some the hard way and some not so hard. There are many young people who watch the effortlessness with which TV characters solve problems and achieve their wildest dreams, from attractive spouses to unimaginable riches , and who delude themselves that it is possible to simply come into the skills witnessed on TV without hard work. Practice is something they stopped doing when they finished secondary school because, as I have been reassured by many, "degree ni mchango".

I may never find out what motivated university students to hatch a plan to rob a bank and I will not subscribe to the self-serving cop-out by one of the thieves' father that his son robbed the bank because society has normalised theft. I, however, have an explanation of why the thieves were caught: this is not what they did for a living. They were mere amateurs, unpracticed in bank robberies and getting away with the crime.

It is only normal for "right-thinking" Kenyans to have a dim view of the "criminal underclass".  After all, they have rejected the norms of honest living, hard work and communal trust for the high risk, high reward world of crime. Every day amateur criminals are arraigned before magistrates, having tripped up on their way to cashing in on their ill-gotten gains. A basic truth often escapes them: to successfully live a life paid for by the proceeds of crime, practice makes perfect.

It matters not whether the crime is bank robbery, purse-snatching, chicken theft or fraud - practice, practice, practice and you will make it to the Carnegie Hall of a successful life of crime. Our intrepid bank robbers came up with a caper that captured the imagination, an echo of successful TV bank robberies involving tunnels and unsuspecting coppers. It turns out that this was the easy part. The hard part was getting away with the crime; fifty million shillings might be a piddly sum for many successful fraudsters in Kenya, but for young university boys, it is a headache that almost always develops into an unmanageable migraine. It is probably only after they had the money at hand that it occurred to them that disappearing fifty million shillings is not easy. This is where the "practice" part would have come in handy.

Knowing who to deal with when "washing" fifty million is not information that is offered on street corners and dimly lit bars. Only the known members of the criminal underclass have access to this kind of information and you only become a member of the criminal underclass by having proven yourself time and again by doing what criminals do: rob, cheat, steal. It would help that you have been a guest of the Government on at least one occasion to build up your rep as a proper criminal. We all now, but cannot prove, that there is a vast network that is capable of turning fifty stolen millions into untraceable assets and the only people who have access to it do not include ambitious university students with a plan.

Of course, a simple question should have occurred to them to ask: why had no one before them pulled off such a caper? They were not the first ones to have come up with the brilliant idea of tunnelling into a bank vault in Kenya. There is a reason why in Kenya the preferred mode of taking banks' monies almost always were either inside jobs involving bank tellers and their managers or violent assaults on cash-in-transit convoys that almost never ended in death or bloodshed. Kenya's criminals are not fools: the one-third of the national budget that goes missing every year should tell you that it is not to be trifled with. So there is a reason why banks haven't had their safes tunnelled into from the outside. That they probably didn't ask this question almost guarantees that they will be convicted and sent to prison. Amateurs!